People v. Clark, Docket No. 22126

• Citation: 243 N.W.2d 914,68 Mich.App. 674
• Decision Date: 17 May 1976
• Docket Number: Docket No. 22126
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Morgan Olan CLARK, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 914

243 N.W.2d 914

68 Mich.App. 674

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Morgan Olan CLARK, Defendant-Appellant.

Docket No. 22126.

Court of Appeals of Michigan.

May 17, 1976.

Released for Publication July 19, 1976.

Walter D. Meyers, Detroit, for defendant-appellant.

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

Before J. H. GILLIS, P.J., and QUINN and NOBLE, ^* JJ.

QUINN, Judge.

The crime that defendant was convicted of and sentenced for and the facts are fully set forth in the dissent. We agree with the resolution of the admissibility of the confession issue as found in that dissent.

The trial court properly denied defendant's motion to suppress the evidence resulting from the search and seizure. Defendant had no standing to challenge the legality of the search and seizure. He was not present at the time of the search and seizure; he had no proprietary and possessory interest in the suitcase and its contents or in the automobile; nor were the suitcase and contents in his possession when seized, Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973).

Affirmed.

NOBLE, Judge (dissenting).

Defendant was charged with, and after a jury trial found guilty of, the first-degree felony murder of Lucille Anne Moss, M.C.L.A.

§ 750.316; M.S.A. § 28.548. He bases this appeal on two alleged errors committed below: the admission into evidence of information gained by the opening of a suitcase and the admission into evidence of defendant's confession.

In the early morning hours of December 26, 1973, two patrolling State Police troopers, Sass and Collins, traveling west on I--96 near Kensington Park, observed that a 1966 Oldsmobile, occupied by a male driver and female passenger, had a broken taillight. The officers ordered the driver of the car to pull over. After momentarily slowing down, the driver accelerated, with the officers giving chase. After a lengthy chase that reached a speed of 120 m.p.h., the Oldsmobile spun off the highway and went into a ditch. When the troopers reached the car, they discovered that the driver had fled on foot, leaving the passenger in the disabled vehicle. Collins, the senior officer, set off on a search for the escaping driver. Sass took the passenger to the patrol car, ascertained her identity, and found that she was the owner of the car and that she had an outstanding traffic warrant against her. The passenger was defendant's wife.

While waiting for two and one-half hours for his partner to return from the chase, Sass entered the disabled auto three times: the first trip to remove the passenger's purse to verify her identity, the second occasion a cursory perusal of the contents of the car that terminated upon discovery of an empty holster, and the third a fairly thorough examination of the inside of the car. On this third examination, Sass opened an unlocked, closed suitcase that was in plain view on the rear seat. He found jewelry, a radio, a camera, a roll of adhesive tape, an ammunition belt, a purse, and a hairdryer. ¹ Sass closed the suitcase and waited for his partner's return.

When Collins returned without having captured the fleeing driver, Sass told his senior partner about the suitcase and its contents. The two officers opened the suitcase and both looked over the contents. They noticed, for the first time, several credit card charge slips imprinted with the name of Lucille Anne Moss, the decedent.

The officers ordered a private tow truck to remove the disabled vehicle, took the suitcase into their patrol car, and returned to their post. Upon arrival, they took the suitcase from the car, and proceeded to make a detailed, written inventory of the contents. Collins then attempted to contact the decedent, after tracing her phone number and Livonia address through the credit car issuer's records. When no one answered the phone, Collins contacted the Livonia Police Department. The Livonia police visited the address provided by Collins and discovered the strangled body of decedent. She was bound, her mouth taped shut, and her bedroom ransacked. It was subsequently determined that the jewelry, hairdryer, and the suitcase itself belonged to decedent.

Collins identified a mugshot of defendant as the driver who had fled on foot. ² The Livonia police traced defendant to a bar in Wyandotte, where he was arrested by the Wyandotte police at 10:30 a.m., December 29, this being about two and one-half days after the driver's flight from the disabled auto. At the preliminary hearing, defendant testified that, at his arrest, he had stayed awake the entire time by taking his wife's diet pills, and that he had consumed a considerable number of beers. The Livonia police picked defendant up from the Wyandotte police at 1:30 p.m. of that day. He walked with a limp, the result of frostbitten feet and the exacerbation of a prior industrial accident that had caused the amputation of the toes of his left foot.

The Livonia police served defendant with a first-degree murder warrant, gave him his Miranda ³ rights, and told defendant that a doctor would be contacted to look at his feet. Defendant was arraigned and processed at the Livonia police station. In the next seven hours, defendant was questioned by the Livonia police about the charged crime and about numerous miscellaneous topics. He was informed that the police were holding his wife on the murder charge. He may have been offered food, and was definitely served coffee. During this time, the Livonia police called the town doctor's answering service. The doctor did not arrive until 10:30 that night. The doctor examined defendant, gave him a shot, and instructed the police to soak defendant's feet. The doctor testified that defendant did not appear to be drunk, drugged, or in pain, and testified that the injury, while significant, was not grave.

After the doctor left, defendant gave the police a taped confession that recited the grisly details of the murder of decedent--death by strangulation accompanying an armed robbery. He exonerated his wife.

Defendant claims that the warrantless examination of the decedent's suitcase found in the back seat of his wife's car was a violation of his Fourth Amendment ⁴ rights and that all evidence directly resulting from that search should have been suppressed. He also claims that his confession was involuntary, the product of the coercion of a drugged, drunken, pained, exhausted, hungry and intimidated man. The trial judge ruled against defendant on both of these points.

I

THE EXAMINATION OF THE SUITCASE FOUND IN THE AUTOMOBILE

The Fourth Amendment to the U.S. Constitution provides:

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

As has been stated by the United States Supreme Court:

'The ultimate standard set forth in the Fourth Amendment is reasonableness. In construing this command, there has been general agreement that 'except in certain carefully defined classes of cases, a search of private property without proper consent is 'unreasonable' unless it has been authorized by a valid search warrant.' * * * One class of cases which constitutes at least a partial exception to this general rule is automobile searches. * * * (T)he decisions of this Court dealing with the constitutionality of warrantless searches, especially when those searches are of vehicles, suggest that this branch of the law is something less than a seamless web.' Cady v. Dombrowski, 413 U.S. 433, 439--440, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706, 713--714 (1973) (citations omitted).

The present case is a difficult search and seizure case; we are required to 'delve into a rather mysterious area of the law'. Williams v. United States, 412 F.2d 729, 732 (CA 5, 1969). We must discern whether or not the officers' examination of the stolen suitcase should be called a search and, if a search, whether it could properly be conducted without a warrant. We must additionally confront the issue of defendant's standing to challenge the examination of a stolen suitcase found in his wife's car.

The prosecutor claims that the officers' examination of the contents of the car, including the suitcase was for a recognized proper purpose. Because the vehicle was disabled, the owner-wife unable to drive because under custodial arrest, and the driver having fled, the police were obligated

to have the car towed away. Given these circumstances, the troopers, complying with departmental practice, could examine and inventory the contents of the car to protect the arrestee's and the fleeing driver's property from theft and to prevent false claims against the police for loss or damage to the property while the car is in custody. The argument is simply that an inventory is not a search, but even if a search, is reasonable despite the absence of a warrant.

A. INVENTORY AS SEARCH

I believe that the initial opening of the suitcase by Trooper Sass and the subsequent station house opening were both searches. Although the U.S. Supreme Court has specifically avoided ruling on this question, Dombrowski, supra, 413 U.S. at 442, 93 S.Ct. at 2528, 37 L.Ed.2d at 715 (fn), other courts have held that an 'inventory' of an automobile's contents is undeniably a search of the automobile.

The depiction of an investigation of an area where one has a reasonable expectation of privacy as a mere inventory rather than a search can only be made if one views Fourth Amendment rights as dependent on police motives. The prosecutor's contention that the allegedly proper motives of the police remove this...