People v. Character, Docket No. 9920

• Decision Date: 26 March 1971
• Docket Number: Docket No. 9920,No. 1,1
• Citation: 32 Mich.App. 40,188 N.W.2d 12
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph CHARACTER, Jr., Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 12

188 N.W.2d 12

32 Mich.App. 40

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph CHARACTER, Jr., Defendant-Appellant.

Docket No. 9920.

Court of Appeals of Michigan, Division No. 1.

March 26, 1971.

Released for Publication July 2, 1971.

Charles Burke, Detroit, for defendant-appellant.

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

Before DANHOF, P.J., and HOLBROOK and BRONSON, JJ.

HOLBROOK, Judge.

This is an appeal as of right from a nonjury conviction on a charge of carrying a concealed weapon in an automobile. M.C.L.A. § 750.227 (Stat.Ann.1962 Rev. § 28.424). ¹

On December 6, 1969, a complaint and warrant were issued charging defendant with carrying a concealed weapon in an automobile. Defendant waived examination and after a nonjury trial on May 6, 1970, defendant was convicted, and on May 27, 1970, defendant was sentenced to serve 4 years probation. An order appointing appellate counsel was entered on July 13, 1970, and a claim of appeal was filed on July 22, 1970. An order denying a delayed motion for a new trial was entered on October 2, 1970.

Pertinent facts developed at trial were the following:

Two Detroit police officers on routine patrol saw an automobile parked in the street with the motor running and no occupants. The car was parked in front of a theatre in a no standing zone. There was no key in the ignition. A screwdriver was lying on the front seat. A larceny check on the car was called in by radio and the officers were informed that the car was not listed as stolen. The officers then searched the car and found a .38 caliber revolver in the glove box. They seized and removed the gun from the car.

The officers then stationed themselves across the street to await the return of the driver of the car. Shortly thereafter, defendant entered the car. After he got inside, the officers approached and arrested him for carrying a concealed weapon in an automobile.

The record does not indicate that defendant made any pretrial motion to suppress the pistol as illegally seized evidence. It is a general rule that any motion to suppress evidence must be made before trial if the defense counsel is aware of the evidence at that time. People v. Smith (1969), 19 Mich.App. 359, 172 N.W.2d 902; People v. Harper (1966), 3 Mich.App. 316, 142 N.W.2d 496. Here defendant waived the preliminary examination. However, there appears to be little doubt that defendant was aware of the seizure of the pistol and the question of the legality of that seizure. The orderly conduct of a trial necessitates that such motions and the resultant hearing be disposed of before trial. However, this Court can still consider the issue, even though no pretrial motion was made, if the lack of that motion was decisive in the defendant's conviction. People v. Degraffenreid (1969), 19 Mich.App. 702, 173 N.W.2d 317. The defendant did object to the admission of the gun at trial, and the trial court ruled it to be admissible.

Defendant raises two issues on appeal. First, that the pistol should have been excluded from evidence because it was illegally seized and, second, the evidence was insufficient to find the defendant guilty beyond a reasonable doubt.

A police officer may make a warrantless search and seizure, either before or after an arrest, if he has probable cause to believe that a felony had been or is being committed. People v. Zeigler (1960), 358 Mich. 355, 100 N.W.2d 456. Whether or not a search and seizure was reasonable and, therefore, legal depends upon the facts known to the officers at the time of the search. People v. Zeigler, Supra; People v. Wade (1970), 23 Mich.App. 132, 178 N.W.2d 139. The people's brief does not address itself to the question of whether the search and seizure was reasonable except to state:

'The search of the vehicle followed two misdemeanors being committed in the presence of the police officers--namely, an illegally parked vehicle in a no standing zone left with the motor running.'

The people also assert that the search was incident to a lawful arrest. However, the facts that brought about the arrest for having a concealed weapon in the automobile came to light after the search, whereas the facts to justify and make the original search reasonable necessarily had to be present beforehand.

The fact that forbidden fruit (a weapon) was discovered does not change the principle. This Court in People v. Giacalone (1970), 24 Mich.App. 492, 494, 180 N.W.2d 289, 290, correctly stated:

'We know of no constitutional doctrine, judicially approved, which permits the validation of an illegal search on the basis of the results it obtains.'

In the instant case, the facts were not sufficient to give the officers probable cause to believe that a...