People v. Bukoski

• Decision Date: 26 June 1972
• Docket Number: Docket No. 11537,No. 1,1
• Citation: 200 N.W.2d 373,41 Mich.App. 498
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edmund BUKOSKI and Lawrence Wiak, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 373

200 N.W.2d 373

41 Mich.App. 498

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edmund BUKOSKI and Lawrence Wiak, Defendants-Appellants.

Docket No. 11537.

Court of Appeals of Michigan, Division No. 1.

June 26, 1972.

Released for Publication Sept. 15, 1972.

Arthur J. Tarnow, State Appellate Defender, Detroit, for defendants-appellants.

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

Before LEVIN, P.J., and BRONSON and VanVALKENBURG ^*, JJ.

BRONSON, Judge.

Defendants were convicted of larceny in a building, M.C.L.A. § 750.360; M.S.A. § 28.592, by a jury in Wayne Circuit Court. Defendant Bukoski was sentenced to a prison term of two to four years. Defendant Wiak was sentenced to a term of one and one-half to four years. They appeal of right.

On the evening of November 28, 1970, patrolmen Ronald Nawrocki and Leonard Pietrzak of the Hamtramck Police Department were summoned to the Polish National Alliance Hall. Upon their arrival, they were informed by one Michael Vitas that some coats had been taken from the hall. Mr. Vitas told the officers that he had attended a wedding reception that evening at the hall. As several guests began leaving, they discovered that their coats were missing. Vitas reported seeing the defendants near Wiak's car at about the same time as he was waiting on the corner for a friend. Wiak allegedly gave the keys to the car to Bukoski, who started the motor while Wiak disappeared into the hall. When Wiak returned, Bukoski took a bundle from the back seat and put it into the trunk.

On learning that defendant Wiak's car was involved, the two officers called for a tow truck to impound the car. While the car was being hoisted onto the truck, the defendants were located and arrested, Bukoski in front of the hall and Wiak in a bar about two blocks away. When they returned to the car, Bukoski told the officers that the keys were in a nearby flower bed. After Officer Nawrocki retrieved the keys, the tow truck was sent away. Wiak then asked why his car was being impounded, was told that the police wanted to check his trunk, and responded: 'Fine, I have nothing to hide.' Three stolen coats were found in the trunk.

The defendants raise three issues on appeal. Their first contention is that, conceding the validity of their arrests, the warrantless search of the parked, unoccupied and locked automobile, which was not in the vicinity of either of their arrests, violated their Fourth Amendment rights. The prosecutor argues that the failure to challenge the admission of the resulting evidence below precludes review. People v. Ferguson, 376 Mich. 90, 135 N.W.2d 357 (1965). In general, this is true.

In People v. Degraffenreid, 19 Mich.App. 702, 173 N.W.2d 317 (1969), this Court recognized that where constitutional rights are involved, the failure to object below will not prevent us from granting a new trial where such failure is of sufficient importance that it may have been decisive. In such a case, the reasons which underlie the preservation of error rule must give way to the interests of justice and the protection of constitutional rights. This is true despite the fact that a defendant's right not to have evidence obtained by illegal search and seizure used against him may be waived by his attorney. Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965).

Where a defendant raises a constitutional question for the first time on appeal, we must ask two questions: (1) Was the evidence decisive, and (2) was the evidence erroneously admitted into evidence. People v. Gunn, 34 Mich.App. 106, 190 N.W.2d 793 (1971). In Degraffenreid, the Court found it was not necessary to determine whether the evidence was erroneously admitted since exclusion of the evidence would not have meant acquittal for the defendant.

In the instant case, the only evidence directly linking defendants to the crime was Michael Vitas' testimony. The admission of the coats found in the search of Wiak's automobile tended to give important corroboration to this testimony. The exclusion of this evidence, we believe, could make a difference in a new trial. We are therefore obliged to consider the validity of the search. People v. Dogans, 26 Mich.App. 411, 182 N.W.2d 585 (1970).

In Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), the United States Supreme Court held that the warrantless search of an automobile was valid where exigent circumstances existed. In that case, the police officers involved had probable cause to believe defendants were transporting contraband liquor between Detroit and Grand Rapids. The Supreme Court found that the failure to seek a search warrant was excusable because of the ease with which the vehicle could have been moved to another jurisdiction.

Carroll was identified in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), and Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L.Ed.2d 564 (1971). In Chambers, the car in which the defendants were riding was stopped because the car and its occupants matched a description given by a witness to a robbery. The defendants were arrested and the car was moved to a police station where it was searched shortly thereafter. The Supreme Court upheld the search. It could find little difference, for constitutional purposes, between stopping and searching the car immediately without a warrant and seizing the car and holding it at the police station for a search warrant. The initial intrusion having been valid, the defendants' rights would have been no less violated by holding the car while a warrant was obtained. To have required a warrant at the stationhouse would have placed a premium on searching at the scene. People v. Weaver, 35 Mich.App. 504, 192 N.W.2d 572 (1971). In reaching its decision the Court said of Carroll:

'Neither Carroll, supra, nor other cases in this Court require or suggest that in every conceivable circumstance the search of an auto even with probable cause may be made without the extra protection for privacy that a warrant affords. But the circumstances that furnish probable cause to search a particular auto for particular articles are most often unforeseeable; moreover, the opportunity to search is fleeting since a car is readily movable. Where this is true, as in Carroll and the case before us now, if an effective search is to be made at any time, either the search must be made immediately without a warrant or the car itself must be seized and held without a warrant for whatever period is necessary to obtain a warrant for the search.

'In enforcing the Fourth Amendment's prohibition against unreasonable searches and seizures, the Court has insisted upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution. As a general rule, it has also required the judgment of a magistrate on the probablecause issue and the issuance of a warrant before a search is made. Only in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a search. Carroll, supra, holds a search warrant unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car's contents may never be found again if a warrant must be obtained. Hence an immediate search is constitutionally permissible.' Chambers v. Maroney, 399 U.S. 42, 50--51, 90 S.Ct. 1975, 1980--1981, 26 L.Ed.2d 419, 428.

In Coolidge, supra, the defendant was arrested on a murder charge in his home. At the time, his car was parked and locked in his driveway. Subsequently, the police returned to the home without a warrant and impounded the car. The first of three painstaking searches for scientific evidence was made two days later. The Supreme Court held that under no stretch of the imagination did exigent circumstances exist. It was therefore necessary for the police to secure a warrant prior to seizing the automobile. The Court said of Carroll:

'The underlying rationale of Carroll and of all the cases that have followed it is that there is 'a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile, for contraband goods, where It is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.' 267 U.S., at 153, 45 S.Ct., at 285. (69 L.Ed., at 551; 39 A.L.R., at 800.) (Emphasis supplied.)

'As we said in Chambers, supra, (399 U.S.) at 51, 90 S.Ct., at 1981, (26 L.Ed.2d, at 428,) 'exigent circumstances' justify the warrantless search of 'an automobile Stopped on the highway,' where there is probable cause, because the car is 'movable, the occupants are alerted, and the car's contents may never be found again if a warrant must be obtained.' '(T)he opportunity to search is fleeting * * *.' (Emphasis supplied.)' Coolidge v. New Hampshire, 403 U.S. 443, 459--460, 91 S.Ct. 2022, 2034--2035, 29 L.Ed.2d 564, 579.

Defendants argue that since Wiak's car was parked, locked and unoccupied at the time of the search, the rationale of Coolidge should govern. They contend that the crucial factor in Carroll and Chambers was the fact that the cars were stopped on the open highway and that it was their...