People v. Brown, Docket No. 12435

• Decision Date: 27 September 1972
• Docket Number: Docket No. 12435,No. 1,1
• Citation: 43 Mich.App. 74,204 N.W.2d 41
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Charles BROWN, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 41

204 N.W.2d 41

43 Mich.App. 74

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Charles BROWN, Defendant-Appellee.

Docket No. 12435.

Court of Appeals of Michigan, Division No. 1.

Sept. 27, 1972.

Released for Publication Feb. 7, 1973.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Leonard Meyers, Asst. Pros. Atty., for plaintiff-appellant.

Kenneth H. Lynn, Potiac, for defendant-appellee.

Before DANHOF, P.J., and LEVIN and BORRADAILE, ^* JJ.

BORRADAILE, Judge.

The parties agree that the issue on appeal is whether the trial court erred in ruling that certain evidence found on the defendant and in his immediate vicinity at the time of his arrest was inadmissible because the arresting officers did not declare their purpose prior to a forcible entry into the defendant's apartment.

A concise statement of the proceedings and facts has been certified. The substance of the statement follows.

The defendant was arraigned on a warrant for robbery armed on August 2, 1968. Bond was set in the amount of $5,000, with two sureties.

On August 9, 1968, preliminary examination was waived.

On May 6, 1969, a competency hearing on motion of the defendant's attorney was held and the defendant was found incompetent and ordered committed to the Department of Mental Health for a period not to exceed 18 months.

On September 8, 1970, on recommendation of the Director of the Center for Forensic Psychiatry, the court ordered the defendant returned to the Wayne County Jail to await further disposition.

On October 20, 1970, preliminary examination was held and the defendant was bound over for trial on the charge of robbery armed. On the same date the defendant was arraigned on the Information and bond was continued at $5,000, with two sureties.

After several trial dates were adjourned, trial was set for May 10, 1971. From May 10, 1971, through May 13, 1971, the defendant's motion to suppress certain evidence was heard and after testimony and oral argument the court ruled in favor of the defendant's motion to suppress. Accordingly, a revolver, a shoulder holster, and several live rounds of ammunition allegedly seized at the time of the defendant's arrest were ruled inadmissible.

The defendant's motion to dismiss because of an illegal arrest was denied. The trial judge granted a stay of proceedings pending appeal by the people of the order granting the motion to suppress.

At the preliminary examination Marion Barber testified that he was the assistant manager of Michigan Estates Furniture and that about 9 a.m. on July 22, 1968, a man with a revolver robbed him of between $140 to $150. He further testified that the bandit was on the premises approximately 20 to 25 minutes and he identified the defendant as the person who committed the robbery. He further testified that the defendant fired a shot in the store. On cross-examination the witness testified that between $70 and $80 in cash was taken by the defendant. This money belonged to the store.

At the hearing on the motion to suppress evidence, Jackie Morton testified that he was a Detroit police officer on July 29, 1968, and had received a radio message to meet a second precinct cruiser at Commonwealth and Grand River. He further testified that he met the second precinct cruiser and put a Ford automobile under surveillance because it fit the description of the car that had been used in an armed robbery. This information had been obtained from a teletype and from another police officer. The Ford was kept under surveillance until midnight and on July 30, 1968, they sent for registration to Lansing and learned that the car was registered to Charles Brown, 6613 Vinewood.

Jackie Morton then testified that he went to 6613 Vinewood and talked to the sister of Charles Brown at that address. He further testified that as a result of a conversation at the location of the car on Commonwealth, north of Grand River, he went to 3974 Commonwealth to look for Saboo Sa Bora at apartment A--4. There being no answer, he went to the Checker Cab Company headquarters on Trumbull, having information that Saboo Sa Bora was employed there as a driver. He was advised that no such person was listed as a driver but that a Charles Brown was employed as a driver and his address was 6613 Vinewood.

He testified that he eventually went to the vicinity of 3974 Commonwealth and stayed in that area to locate a cab that was supposed to have been driven by Charles Brown, and that when a Checker Cab arrived he knocked on the door of apartment 4. He testified that someone on the inside asked who it was, and that the witness and his fellow officers answered 'It's the police.'

The witness then testified that the person inside of the room again asked who it was and that the police responded by telling him it was the police. The witness then testified that he heard a running noise that ran to the rear of the apartment; that there were footsteps away from the door. The witness testified that when he heard the footsteps running from him, he opened the door. He testified that the door was open and not locked. He further testified that the door had a chain nightlatch. The witness testified he heard noises from the back of the apartment, noises which sounded like the back of the toilet. As a result of these noises and the steps going away from him, he testified that he forced the door of the apartment and got inside.

The witness testified that when he got inside the apartment he went to the living room where the door enters the kitchen and the bathroom goes off the kitchen, and heard a noise and that the defendant came out of the bathroom to the kitchen table and picked up a knife. He testified that he told the defendant to drop the knife and that the witness stepped into the bathroom and looked at the toilet tank. He testified that the back of the toilet tank top had been knocked off and he looked inside and saw a revolver in the back of the tank. He removed the revolver from the tank, describing it as a .38-caliber nickel-plated revolver, serial number 0109164, which he ticketed and placed in the police property room.

On cross-examination the witness testified that he had no warrant to search the premises nor did he have a warrant for the arrest of Charles Brown. The witness testified that he went to the bathroom and searched the premises and that the defendant was about three steps out of the bathroom. The witness further testified that the defendant was arrested for robbery armed of a furniture store on Grand River and that his person was searched at that time. The police removed a shoulder holster from the defendant and confiscated three live rounds of .38-caliber ammunition. The witness also testified that there was one spent round in the defendant's pocket.

The trial court held that the arresting officers had reasonable grounds to believe that the defendant had violated the law relating to armed robbery and determined that the arrest of the defendant was not unlawful and was made with probable cause. However, the trial court held that the forcible entry was illegal in that it did not conform to M.C.L.A. § 764.21; M.S.A. § 28.880 because there was no declaration by the officer as to his purpose prior to breaking in the door. The defendant's motion to suppress the evidence was granted.

On May 20, 1971, the plaintiff requested a transcript of the motion-to-suppress proceedings.

On July 12, 1971, the plaintiff's motion to extend time within which to file the people's application for leave to appeal was granted by the trial court.

On September 3, 1971, the Court of Appeals granted the plaintiff's motion for extension of time to complete the application for leave to appeal.

On September 27, 1971, the people filed a motion in the Court of Appeals for a further extension of time to November 11, 1971, so as to enable the peopel to perfect the application for leave to appeal inasmuch as the transcript of the motion-to-suppress proceedings had not been filed by the court reporter.

The court reporter filed the transcript of the motion-to-suppress hearing on October 1, 1971.

The prosecution argues that a declaration of purpose is implicit in a declaration of identity and that when the police officers twice knocked on the defendant's apartment door and said 'It's the police', before breaking in, there was substantial compliance with the Michigan statute on forcible entry.

The statute, M.C.L.A. § 764.21, M.S.A. § 28.880, reads:

'To make an arrest, a private person, if the offense be a felony committed in his presence, or a peace officer with a warrant or in cases of felony when authorized without a warrant, may break open an inner or outer door of any building in which the person to be arrested is or is reasonably believed to be if, after he has announced his purpose, he is refused admittance.'

In lieu of any Michigan cases construing the statutory language 'after he has announced his purpose', the people rely on United States v. Alexander, 346 F.2d 561 (C.A.6, 1965), cert. den., 382 U.S. 993, 86 S.Ct. 575, 15 L.Ed.2d 480 (1966); United States v. Harris, 391 F.2d 384 (C.A.6, 1968); and United States v. Sharpe, 322 F.2d 117 (C.A.6, 1963). Both the Alexander and Harris cases held that the Michigan statute, M.C.L.A. § 764.21, Supra, controls whether the forcible entry itself was illegal, citing Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), and United States v. Wood, 341 F.2d 103 (C.A.6, 1965).

In Alexander, argents of the Federal Bureau of Narcotics had in their possession a Federal warrant for the arrest of Trudy Lewis. They had information from an informant that she was living in a second floor rear apartment at 254 Frederick Street in Detroit. Federal agents placed the building under surveillance for about an hour. One of the two upper rear apartments was dark. Two agents...